101 West Colfax Avenue, Suite 800
Denver, Colorado 80202 / ▲COURT USE ONLY▲
Appeal from the District Court, City and County of Denver, Colorado
Case No. 2005CV4794
Honorable Sheila A. Rappaport
Plaintiffs-Appellees: Anthony Lobato, as an individual and as parent and natural guardian of Taylor Lobato and Alexa Lobato; Denise Lobato, as an individual and as parent and natural guardian of Taylor Lobato and Alexa Lobato; Miguel Cendejas and Yuri Cendejas, individually and as parents and natural guardians of Natalia Cendejas and Salina Cendejas; Pantaleon Villagomez and Maria Villagomez, as individuals and as parents and natural guardians of Chris Villagomez, Monique Villagomez and Angel Villagomez; Linda Warsh, as an individual and as parent and natural guardian of Adam Warsh, Karen Warsh and Ashley Warsh; Herbert Conboy and Victoria Conboy, as individuals and as parents and natural guardians of Tabitha Conboy, Timothy Conboy and Keila Barish; Terry Hart, as an individual and as parent and natural guardian of Katherine Hart; Larry Howe-Kerr and Anne Kathleen Howe-Kerr, as individuals and as parents and natural guardians of Lauren Howe-Kerr and Luke Howe-Kerr; Jennifer Pate, as an individual and as parent and natural guardian of Ethan Pate, Evelyn Pate and Adeline Pate; Robert L. Podio and Blanche J. Podio, as individuals and as parents and natural guardians of Robert T. Podio and Samantha Podio; Tim Hunt and Sabrina Hunt, as individuals and as parents and natural guardians of Darean Hunt and Jeffrey Hunt; Doug Vondy, as an individual and as parent and natural guardian of Hannah Vondy; Denise Vondy, as an individual and as parent and natural guardian of Hannah Vondy and Kyle Leaf; Brad Weisensee and Traci Weisensee, as individuals and as parents and natural guardians of Joseph Weisensee, Anna Weisensee, Amy Weisensee and Elijah Weisensee; Stephen Topping, as an individual and as parent and natural guardian of Michael Topping; Debbie Gould, as an individual and as parent and natural guardian of Hannah Gould, Ben Gould and Daniel Gould; Lillian Leroux Sr., as an individual and as parent and natural guardian of Lillian Leroux III, Ashley Leroux, Alixandra Leroux and Amber Leroux; Theresa Wrangham; as an individual and as parent and natural guardian of Rachel Wrangham; Lisa Calderon, as an individual and as parent and natural guardian of Savannah Smith; Jessica Spangler, as an individual and as parent and natural guardian of Rider Donovan Spangler; Jefferson County School District No. R-1; Colorado Springs School District No. 11, in the County of El Paso; Bethune School District No. R-5; Alamosa School District, No. RE-11J; Centennial School District No. R-1; Center Consolidated School District No. 26JT, of the Counties of Saguache and Rio Grande and Alamosa; Creede Consolidated School District No. 1 in the County of Mineral and State of Colorado; Del Norte Consolidated School District No. C-7; Moffat, School District No. 2, in the County of Saguache and State of Colorado; Monte Vista School District No. C-8; Mountain Valley School District No. RE 1; North Conejos School District No. RE 1J; Sanford, School District No. 6, in the County of Conejos and State of Colorado; Sangre de Cristo School District, No. RE-22J; Sargent School District No. RE-33J; Sierra Grande School District No. R-30; South Conejos School District No. RE10; Aurora Joint School District No. 28 of the Counties of Adams and Arapahoe; Moffat County School District Re: No. 1; Montezuma-Cortez School District No. RE-1; and Pueblo, School District No. 60 in the County of Pueblo and State of Colorado,
and
Plaintiffs-Intervenors-Appellees: Armandina Ortega, individually and as next friend for her minor children, S. Ortega and B. Ortega; Gabriel Guzman, individually and as next friend for his minor children, G. Guzman, Al. Guzman and Ar. Guzman; Robert Pizano, individually and as next friend for his minor children, Ar. Pizano and An. Pizano; Maria Pina, individually and as next friend for her minor children, Ma. Pina and Mo. Pina; Martha Lopez, individually and as next friend for her minor children, S. Lopez and L. Lopez; M. Payan, individually and as next friend for her minor children, C. Payan, I. Payan, G. Payan and K. Payan; Celia Leyva, individually and as next friend for her minor children, Je. Leyva and Ja. Leyva; and Abigail Diaz, individually and as next friend for her minor children, K. Saavedra and A. Saavedra,
v.
Defendants-Appellants: The State of Colorado; Colorado State Board of Education; Robert K. Hammond, in his official capacity as Commissioner of Education of the State of Colorado; and John Hickenlooper, in his official capacity as Governor of the State of Colorado / Case No. 2012SA25
Attorney for Amicus Curiae:
James W. Hubbell, # 123277
1822 West 33rd Avenue, No. 105
Denver, CO 80211
Phone Number: 303-377-3107
Facsimile Number: n/a
E-Mail:
Attorney for Amicus Curiae Colorado Center on Law and Policy
BRIEF OF COLORADO CENTER
ON LAW AND POLICY AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g):
Choose one:
□ It contains words.
ý It does not exceed 30 pages.
ý I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32.
James W. Hubbell
TABLE OF CONTENTS
Page
CERTIFICATE OF COMPLIANCE i
TABLE OF AUTHORITIES iv
STATEMENT OF INTEREST OF AMICUS CURIAE 1
STATEMENT OF ISSUES 2
STATEMENT OF FACTS 2
SUMMARY OF ARGUMENT 2
ARGUMENT 3
I. TABOR IS NOT RELEVANT TO THIS CASE AT THIS STAGE. 3
II. THERE IS NO CONFLICT BETWEEN TABOR AND THE EDUCATION CLAUSE. 5
III. NOTWITHSTANDING TABOR, THE GENERAL ASSEMBLY HAS MANY OPTIONS FOR INCREASING REVENUE FOR EDUCATION. 9
A. The General Assembly can enact tax policy changes that result in additional general fund revenue. 11
B. The General Assembly can raise fees charged for state services. 13
C. The General Assembly can impose new taxes under two TABOR exceptions. 14
1. Final Court Judgments 14
2. Emergency Provision 16
D. The General Assembly can refer a statewide ballot measure to voters 18
E. The General Assembly can conduct a comprehensive tax study 18
CONCLUSION 19
TABLE OF AUTHORITIES
Page
Cases
Barber v. Ritter,
196 P.3d 238 (Colo. 2008) 8
Bickel v. City of Boulder,
885 P.2d 215 (Colo. 1994) 5, 6
Black Voters v. McDonough,
565 F.2d 1 (1st Cir. 1977) 18
Bruce v. City of Colorado Springs,
129 P.3d 988 (Colo. 2006) 7
Carrara Place, Ltd. v. Arapahoe County Bd. of Equalization,
761 P.2d 197 (Colo. 1988) 6
City of Wheat Ridge v. Cerveny,
913 P.2d 1110 (Colo. 1996) 6
Colorado Common Cause v. Bledsoe,
810 P.2d 201 (Colo. 1991) 6
Havens v. Bd. of County Comm'rs,
924 P.2d 517 (Colo. 1996) 7
In re Submission of Interrogatories on Senate Bill 93-74,
852 P.2d 1 (Colo. 1993) 5
Lobato v. State of Colorado,
218P.3d 358 (Colo. 2009) 6, 15
Lucas v. Forty-Fourth Gen. Assembly of the State of Colo.,
377 U.S. 713 (1964) 18
McCleary v. State of Washington,
269 P.3d 227 (WA 2011) 13
Mesa County Bd. of County Comm’rs v. State of Colorado,
203 P.3d 519 (Colo. 2009) 9, 11
Submission of Interrogatories on House Bill 899-1325,
979 P.2d 549 (Colo. 1999) 8
Statutes and Rules
Colo. Const., art. IX, §2 1, 2
Colo. Const., art. IX, § 15 2
Colo. Const., art. VI, §3 11
Colo. Const., art. X, §20 2
Colo. Const., art. X, § 20(1) 10, 14
Colo. Const., art. X, §20(2)(c) 17
Colo. Const., art. X, §20(3)(c) 17
Colo. Const., art. X, § 20(4) 13, 14
Colo. Const., art. X, § 20(4)(a) 10
Colo. Const., art. X, § 20(6) 10, 16, 17
Colo. Const., art. X, §20(7) 11, 12, 17
C.A.R. 29 1
Other Authorities
Focus Colorado: Economic And Revenue Forecast,
Colorado Legislative Council, September 2012 11-12, 13
Issue Brief: School Finance as a Tax Policy Tool, Colorado
Legislative Council Staff, Nov. 28, 1997, available at: http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251619439912&ssbinary=true. 9
TABOR: A Guide to the Taxpayer Bill of Rights,
Colorado Municipal League, 2011 Revision 9
vi
Pursuant to Rule 29, Colorado Appellate Rules, Colorado Center on Law and Policy (“CCLP”), through its counsel, James W. Hubbell, conditionally submits this brief as amicus curiae in support of Plaintiffs-Appellees.
STATEMENT OF INTEREST OF AMICUS CURIAE
CCLP is a non-profit, non-partisan policy research and advocacy organization dedicated to issues of importance to low-income Coloradans, especially access to health care; opportunities to achieve economic security; and adequate, sustainable and equitable state fiscal and budgetary policies. CCLP has actively researched and advocated in these policy arenas for almost fifteen years.
CCLP works to ensure that public services essential to the ability of low-income Coloradans to achieve economic security are adequately and equitably supported. Public education is such an essential service.
Through its fiscal policy program, CCLP has been a strong and knowledgeable voice on issues surrounding state taxing and spending for a decade and a half. Its expertise in the interaction of Colorado constitutional provisions that guide state fiscal policy is widely recognized. CCLP submits this amicus curiae brief to explain for the Court the interaction of the Education Clause, Colo. Const., art. IX, §2 – the heart of this case – and the Taxpayers Bill of Rights, Colo. Const., art. X, §20, and to address available revenue-raising mechanisms in the context of these unique constitutional provisions.
STATEMENT OF ISSUES
CCLP hereby adopts and incorporates the Statement of Issues presented in the Opening Brief of Plaintiffs-Appellees.
STATEMENT OF FACTS
CCLP hereby adopts and incorporates the Statement of Facts presented in the Opening Brief of Plaintiffs-Appellees.
SUMMARY OF ARGUMENT
Although the district court properly excluded any evidence of the revenue restrictions in the Taxpayers Bill of Rights (“TABOR”), Colo. Const., art. X, §20, and its exclusion is not a direct issue on appeal, Defendants and their amici nonetheless argue that TABOR precludes – and excuses – the State from complying with its obligations under two other constitutional provisions – the Education Clause, Colo. Const., art. IX, §2, and the Local Control Clause, id., art. IX, § 15. This Court should decline to address TABOR because the issue is not relevant to this stage of the case. The narrow question before this Court is whether the district court erred in finding Colorado’s school finance system violates the Education and Local Control Clauses of the Colorado Constitution. The revenue restrictions in TABOR are not relevant to the issue of whether students’ rights have been violated. To the extent TABOR has any relevance to this case, it is limited to the issue of remedy, which is not properly before the Court because the General Assembly has not yet attempted to craft a remedy.
Even if TABOR were relevant to this appeal, it does not pose a bar to relief. There is no constitutional conflict between the TABOR provision and the Education Clause and thus the legislature is free to design whatever remedy it deems appropriate to address the underfunding of our public schools. Moreover, even if there were a conflict in need of harmonization, there are many potential remedies that are fully compliant with TABOR, such as enacting tax policy changes, raising fees for state services, invoking the final court judgment or emergency exceptions, or referring a statewide ballot measure to the voters. There is simply no merit to Defendants and their amici’s arguments that TABOR precludes relief in this case.
ARGUMENT
I. TABOR IS NOT RELEVANT TO THIS CASE AT THIS STAGE.
This is a case about the quality of the education being delivered to the over 800,000 public school students across the State. It is also a case about the way the General Assembly determines how much money to allocate to public education. And it is a case about how those decisions have impacted students, particularly those who belong to vulnerable populations. It is not a TABOR case.
The district court understood that Plaintiffs’ claims were not impacted by TABOR. It therefore excluded evidence of TABOR’s revenue restrictions, finding those restrictions not relevant to the constitutional issue before it: whether Colorado’s school finance system is rationally related to the constitutional guarantee of a thorough and uniform system of public schools. See 7/11/11 Order (finding “while fiscal pressure may explain why students’ rights have been violated, it has no bearing on the issue whether students’ rights have been violated”) (emphasis in original). The court explained that “[t]he evidence . . . of the effects of TABOR [is] distinct from students or the actual quality of the education they receive.” Id. The issue before this Court is whether the trial court erred in finding no rational relationship between the State’s school finance system and its education mandate. The limitations that TABOR places on the General Assembly’s ability to raise revenue are likewise irrelevant to this analysis.
While TABOR is not relevant to the constitutionality of the public school
finance system, it may become relevant to the remedy depending on how the General Assembly chooses to redress the issues in this case. However, those choices are still unknown, as the General Assembly has yet to take any steps to address the findings of unconstitutionality in the district court’s decision. Thus, it is premature and speculative to query if and how TABOR may be implicated in the remedy when no remedy has been discussed, designed, or implemented. Since there is no TABOR question before the Court in this appeal, the Court need not consider how TABOR may impact some of the revenue-raising options available to the General Assembly.
II. THERE IS NO CONFLICT BETWEEN TABOR AND THE EDUCATION CLAUSE.
Even if TABOR were relevant to the issues on appeal, it does not preclude a remedy to Plaintiffs’ and Plaintiff-Intervenors’ claims because there is no irreconcilable conflict between the procedural requirements of TABOR and the substantive obligations imposed upon the General Assembly by the Education Clause.